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OSHA's COVID-19 Mandate Faces Uphill Battle After The U.S. Supreme Court Hears Oral Argument

The U.S. Supreme Court heard argument this morning for more than 2 hours with respect to OSHA’s vaccinate-or-test Emergency Temporary Standard (“ETS”).

The argument involved not only the merits of whether the ETS should be blocked, but also a discussion of whether a "stay" (a delay) should be issued prior to the first compliance date, which is this Monday, January 10. More pointedly, one of the Justices asked whether an administrative stay should be issued in the next few days to allow the Court further time to consider the issues and render a decision prior to employers being required to comply with the OSHA ETS.

The arguments against the OSHA ETS were far-ranging. In general terms, concerns were raised as to whether Congress and the states should decide countermeasures to the COVID-19 pandemic rather than OSHA. Another argument was based on the position that OSHA's expertise should be focused on addressing workplace hazards rather than general wide-spread diseases affecting society as a whole. It was also argued that the regulations are overbroad because they were not targeted to certain industries and higher-risk employees.

The arguments in favor of the OSHA ETS focused on the broad statutory language regarding OSHA’s ability and obligation to combat workplace threats. It was argued that given the overwhelming state of the pandemic, COVID-19 is automatically a workplace threat and within OSHA’s jurisdiction to regulate.

While it is difficult to attempt to predict the outcome of the proceedings, questions asked by the Justices gave some insight into where the mandate may be headed. From the arguments, it appears Justice Breyer, Justice Sotomayor, and Justice Kagan, are likely in favor of the mandate. The other six Justices, all Republican appointees, asked pointed questions about the legality of the ETS. Chief Justice Roberts was very vocal and questioned whether Congress and the individual states should address this issue rather than OSHA.

There is much speculation about when a decision will be issued. Based on comments from the Justices, there is a possibility a stay may be issued over the weekend or early next week with a formal decision on the merits issued at a later date.

For now, the first compliance date for the OSHA ETS remains Monday, January 10. The second compliance date of February 9 for testing also remains intact. Employers subject to the OSHA ETS mandate should continue taking steps to demonstrate their good faith efforts toward compliance with the mandate, including development and implementation of a policy complying with the regulations.

McGrath North’s Labor and Employment team is available to assist you in complying with the OSHA ETS. We are closely monitoring the outcome of today’s oral arguments, and we will provide an update after a decision is issued by the Supreme Court.